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Workers can be fired for any reason or no reason -- not an illegal reason
Monday, October 17, 2011

Say you buy a new tie. It's a little louder than your usual neckwear -- polka dots, maybe, or even an aggressive plaid.

Your boss calls you into his office and fires you. The reason? He hates your tie.

Fired for wearing a bad tie. Is that even legal?

"Absolutely," said Bruce Baldwin, a partner at Wolf, Baldwin and Associates in Pottstown and an expert on state labor law.

"Is it fair? Absolutely not."

It's legal because of Pennsylvania's status as an at-will employment state, which Mr. Baldwin translates as: "An employer can fire, suspend or fail to promote an employee for any reason or no reason at all, so long as it's not an illegal reason." That informs nearly all termination litigation in Pennsylvania.

At-will employment issues and termination litigation are two things that go up when the economy goes down. It's especially germane as national unemployment hovers around 9 percent and layoffs across the country acquaint more workers with legal hassles that no one ever wants to deal with.

As more workers seek employment, many find themselves facing the raft of legal challenges -- severance packages, lawsuits, even access to reference letters -- that come with a pink slip or layoff (or damning wardrobe critique).

In Pittsburgh, Stephen Jordan, of Downtown-based Rothman Gordon, has seen an increase in termination litigation over the past few years. "I've been doing labor and employment law for 35 years and I think there's a cyclical nature to it," he said. "When the economy gets bad, it's just natural."

The state saw a surge in the percentage of discrimination complaints having to do with termination issues, according to the Pennsylvania Human Relations Commission. In the 2006- 2007 fiscal year, 72 percent of complaints dealt with termination issues.

The next year, the termination percentage jumped and it remained high, hitting 78 percent in 2008- 2009 before settling back down to the low 70s. In 2010-2011, 73 percent of the state's 2,676 discrimination complaints dealt with termination.

Charges of an illegal firing usually involve accusations of discrimination for attributes such as age, religion, gender, health or national origin, Mr. Jordan said.

If a terminated employee is more than 40 years old, an employer must provide the individual with 21 days to consider any severance agreement offered and an additional seven-day revocation period in which the decision can be changed.

The 28-day provision comes courtesy of the Older Workers Benefit Protection Act, which also grants terminated employees who are part of a mass layoff the right to see a list of names and ages of the other terminated workers.

Some employees might not know that post-termination benefits are already built into a contract, said Karen Litzinger, a career coach in Regent Square who has been called in to help companies with "outplacement" services that help newly fired workers find another job.

Ms. Litzinger has been paid by firms to be on hand when termination notices are given, and she provides career advice in the months following a layoff. "Potentially, that creates some goodwill from this terminated employee, which could help with the legal arena, too," she said.

Rarely, a top job prospect can negotiate outplacement services into a contract before even beginning the job, said Ms. Litzinger, but she agreed with Mr. Jordan, who said those kind of prenuptial agreements can be a buzz-kill.

"It's like a new marriage," he said. "Everybody goes into it thinking it's going to work."

When the honeymoon is over and high-level positions are eliminated, much of the litigation arises from a company protecting itself from more litigation. A severance package is typically offered to executives in exchange for a promise not to sue over anything that happened during the time of employment.

Of course, the severance package has a much-maligned cousin in the "golden parachute," which can send fat-cat executives on their way with multi-million-dollar paydays and the ill will of the masses.

Earlier this month, Bank of America Corp. announced it would send wealth-management division head Sallie Krawcheck off with $6 million. And when Hewlett-Packard CEO Mark Hurd resigned after allegations he had an inappropriate affair with a contractor, the news that he'd leave with millions wasn't exactly a public relations coup.

But since the severance package can be a guard against future litigation, a higher-placed executive privy to more sensitive company information can command a higher payday.

"The rich seem to get richer and the poor get poorer," Mr. Jordan said.

It's a cycle that doesn't seem to be going anywhere. Nationwide, the number of people working in the finance and insurance industries fell 8.1 percent between December 2006 and August 2011, according to the U.S. Bureau of Labor Statistics.

Litigation fears also can make it more difficult to find a new job: Many companies now refuse to provide job recommendations in order to protect their own reputation. Barring references protects an employer from being blamed for its workers' future misdeeds.

For example, if a worker is fired for stealing and his supervisor doesn't warn his next employer of the theft, that first company is vulnerable to a lawsuit if that worker steals from his new employer.

"A quarter century ago, if you left a job and didn't get a letter of recommendation, that was a signal to the world that you probably did something wrong," Mr. Jordan said. "Now it's common to have a policy that does not allow references."

Instead, an employer will confirm only an applicant's name, dates of employment and position.

"It's like name, rank and serial number," Mr. Jordan said.

Erich Schwartzel: eschwartzel@post-gazette.com or 412-263-1455.

First published on October 17, 2011 at 12:00 am